140,000 fewer cases involving welfare benefits ?

This article titled “So we can’t afford legal aid? Look at the costs without it” was written by Zoe Williams, for The Guardian on Wednesday 22nd June 2011 21.00 Europe/London

This argument is becoming a bit one-note. The government suggests a cut, and the injustice of it howls out of the document like a singing Christmas card. They insist that all these points are moot because we can no longer afford social justice. Do you want to go the same way as Greece? No? Well, then. Swallow the £350m reduction in legal aid or you’ll end up with taramasalata all over your face.

Let’s just experiment with a different approach. The full case against these legal aid cuts, in terms of morality and good governance, you can read elsewhere – this debate in the House of Lords last month, for instance. But what if this money-saving measure is actually going to cost more than it saves?

Legal aid is to be removed from issues including debt, employment, housing, family law and criminal negligence. Although some provision remains for legal help with education, the Children’s Legal Centre points out that to access it, “a good working knowledge of education law seems to be the prerequisite for all parents, under these measures”. Hopefully Google will be able to help.

From now on, funding will be available for a quarter of a million fewer cases in family law, 140,000 fewer cases involving welfare benefits, 110,000 involving debt, 50,000 involving serious housing problems and 30,000 involving employment problems.

Families will be expected to resolve everything through mediation from now on, with the exception of cases of domestic violence. This will force up charges of domestic violence, which are often buried in the interests of a settlement but are likely to be disinterred if there is no other option.

Thus cases will become more complicated, and with more agencies involved. The National Association of Citizens Advice Bureaux gives these figures for the money-saving advantages of timely advice: a pound spent on welfare benefits advice saves £8.80 in future spending; every pound spent on housing advice saves £2.34; and every bit of debt advice saves £2.98. By the time a case comes to court the whole procedure has become fiendish in its complication and expense. A policy that legal help will not be available until the client’s “home is at immediate risk” (in the case of debt) shows no understanding of this.

But this is just the beginning: the Children’s Legal Centre also points out what great confidence this bill puts in no-win-no-fee arrangements, or conditional fee agreements, to fill the void left once there is no legal aid for employment and clinical negligence cases.

A conditional fee agreement works like this: the solicitor will agree a fee with the client, plus a mark-up. In very easy cases the mark-up will be small; in complicated cases the mark-up could be 100% or more. Naturally some of these cases won’t win; but where they do, compensation amounts will be extremely high, and they will be paid by local authorities and primary care trusts.

This shunts the cost from one government department to another, with the irksome side-effect that the cost is much greater. Imagine, furthermore, if someone were to bring a human rights case against a local council: this would be unusual now. If there’s a question over a council’s responsibility to a child in custody or a case about a child who has been excluded, all of that would currently be funded by legal aid. Once that’s been withdrawn the channels of regular justice are closed down, and what would have once looked like the nuclear option – an appeal to the supreme court under protocol 1, article 2 of the European convention on human rights, the right to education – becomes the only option. The cost of taking a no-win-no-fee case to the supreme court would be enough to bankrupt some local councils.

Chris Callender of the Howard League for Penal Reform points out a whole layer of secondary costs: “We represent children and young adults in prison. They often come from traumatised backgrounds. So you have a 15-year-old who’s coming out of prison, who’s traumatised, who has no job, who has nowhere to go. If I then approach his local authority using legal aid, I can persuade them of their duty to him.”

Callender cites the example of a minor who, on his release, was housed in a shared room with a 40-year-old who was dealing crack cocaine from the windowsill (somehow it is the window that really brings this picture alive). These conditions are almost designed to get young people back into prison.

Liberal Democrat peer Tom McNally fell back on the figure, whose veracity nobody contests, that our legal aid system is the most expensive in the world, costing £39 per head; compare that to New Zealand’s £8. This is in part attributable to administration (and wastage in court costs will go up with the rise of litigants-in-person) and in some cases to barristers’ fees (the Law Society found alternative savings of nearly £100m in a suggested fee cap for legal aid cases).

Just as the welfare bill was swelled by landlords, so the money here has been going to those who have, while the cuts hit those who haven’t. But let’s not get bogged down in right and wrong. Stick with the money. This might be a cut, but it isn’t a saving. It will cost us a fortune.

• This article was amended on 23 June 2011. In the original, Tom McNally’s party affiliation was said to be Conservative. This has been corrected.

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